Wednesday, December 16, 2009

LAW & LITERATURESpring 2010 / Louis D. Brandeis School of Law / University of LouisvilleDonald Vish, lecturer_____________________________________________

Course Description

This course will present insights into the nature of law and social justice through the prism of literature. Each class will explore timely and timeless topics arising out of the search for justice. How can Orestes extricate himself from the duty to avenge the murder of his father by killing his own mother? How shall Captain Vere punish Billy Budd’s reflexive act that results in the death of a superior officer aboard ship in wartime? How is Antigone to obey the religious law requiring her to bury her brother and the state’s decree that she may not? Justice is a pendulum that swings between the letter of the law and the spirit of equity. We shall plot the course of justice through the eyes of art and the imagination of storytellers. Poets and litterateurs are the unacknowledged legislators of the world. ____________________________________Lecture #1: INTRODUCTION[January 7, 2010]_____________________________________________Course Syllabus

Basis of grading: Either four papers written as book reviews for each of the four principal literary assignments will be 80% of the grade or one paper using each of the four principal works to define and describe the nature of justice in not less than 2500 words nor more than 4000. Class participation will be 20% of the final grade (discuss this with students.) Each paper should be less than 750 words and relate the story line or a character to the important legal principles you discern in the text. We are interested in the story line ONLY as it impacts law and justice issues. The paper is due at the beginning of the class at which the piece is to be discussed. Good reportage is a “C” and superb insight and analysis is an “A.” Class participation means responding when called on as well as gratuitous participation in class discussions and raising helpful and provocative questions and comments. Knowing the lesson will earn a “C” or “B” whereas participation distinguished by obvious analytical thought will earn an “A.” If you feel the class has concluded without affording an adequate opportunity for you to shine, you may email me your extended remarks within 24 hours of the class at donaldvish@middreut.com and they will be considered. A class ombudsman committee of three will be appointed to present any complaints, suggestions and requests that an individual student may not want to present personally to the lecturer.

Class plan: There will be thirteen lectures between January 7 and April 15. Four key literary works will be considered in lectures #4 (January 28), #7 (February 18), #10 (March 25), and #12 (April 8). Other literary works and fragments treating law and justice themes will be discussed in the intervening lectures. It is NOT necessary for you to read or read about any item marked with an asterisk (*). The material marked with an asterisk (*) will be referenced and described by the lecturer during the class.Facebook: A class Group Page has been created under the title: Law & Literature @ Louis D. Brandeis School of Law. Weekly assignments will be posted along with discussion opportunities.

Textbooks: (1) Law and Literature: Text & Theory (paperback edition) edited by Lenora LEDWON (1996, Garland Publishing, Inc) [$40.00 new from Amazon, some used at $22.00]; and (2) Richard A. POSNER, Law and Literature (Revised and Enlarged Edition) [Harvard University Press, 1998]. (Referred to as POSNER or LEDWON in this Syllabus). (See LEDWON pp. 102 for a critique of the POSNER view of law and literature).

Major Resource on line: LAW & HUMANITIES: a Bibliography of Law and Literature, Professor Daniel L. Solove, The George Washington University Law School (this is a tour deforce, consult it before each class to see if there is anything that interests you or helps you with the assignment). http://docs.law.gwu.edu/facweb/dsolove/Law-Humanities/writers.htm

Reading assignments: many can be accessed online.

The following works may be purchased from Amazon.com and delivered for less than $100.00 or may be read through excerpts available in the two textbooks. Only Billy Budd, Sailor must be read in its entirety. Here are the major literary works:

Literary fragments, excerpts and the expository prose and poetry are identified in the assignments section of each lecture plan. If you have trouble finding the text online, please let me know by email. If you elect to write one paper you can begin right away and proceed during the semester at your own pace. If you elect to write five papers, one on each of the principal literary works, the paper is due at the beginning of the lecture at which the work will be considered.

The Study of Law and Literature

The law and literature movement focuses on the interdisciplinary connection between law and literature. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must be plugged into a large cultural or philosophical or social-science context to give it value and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether literary or legal. Those who work in the field stress one or the other of two complementary perspectives: law in literature (understanding enduring issues as they are explored in great literary texts) and law as literature (understanding legal texts by reference to methods of literary interpretation, analysis, and critique). From Wikipedia http://en.wikipedia.org/wiki/Law_and_literature

Journals: Law and Literature

The Cardozo Studies in Law and Literature, a leading journal on the subject for many years, has changed its name and is now part of the University of California Press (access requires subscription): http://www.ucpressjournals.com/journal.asp?j=lal

Lawyers and Literature

Website created by James Elkins, Professor of Law, West Virginia University, for his course on lawyers and literature.

Assignments for Class #1:1. Book of Genesis: 4:1-24 The Story of Cain and Abel: 9:6, the law as explained to Noah. Is the judge fair? Is the punishment just? What is the nature of the justice system in the story? Identify all of Cain’s crimes. Which is the most serious? What does it mean to be avenged sevenfold? Is Lamech a murderer? Is he punished or protected?2. Psalm 19, 7-11. What are the elements of a good legal system according to Psalm 19? Where does the law originate? What is its source, its authority? Does the source of the law in Psalm 19 have anything in common with the United States Constitution or the Declaration of Independence? Does crime pay?3. Dante, The Divine Comedy Canto V, XX, XXVIII line 142, XXXIV [Google the word ‘contrapasso’ with Dante’s name]. Is Cain’s punishment consistent with Dante’s theory of contrapasso? What exactly is Cain’s punishment(s)? Did God provoke Cain?

It is not necessary to read the following work (s) that will be cited or explained during the lecture:

*7. Ovid, MetamorphosesBook 12 (612-631), and Book 13The Judgment of Arms (1-393). Upon the death of the great warrior Achilles on the battlefield of Troy, two people claim his sword and shield. An assembly is convened to hear the evidence and decide who is worthy: the wily Odysseus or the warrior Ajax. Each makes their case their case to the jury. http://www.mythology.us/ovid_metamorphoses_book_13.htm. The lesson from this debate is in the last 16 lines of the report.*8. Aristophanes, The Clouds (419 BCE, Greece). A man wants his son to study rhetoric in order to learn to talk his way out of debt.

*10. Plutarch, Solon. Athenians used to cover up the ugliness of things with auspicious and kindly terms, giving them polite and endearing names.

*11. Apollodorus of Athens (born c. 180 B.C.E.) (The Library 3.180), Pausanias and Suidas both recount the myth of the rape of Ares’ daughter Alkippe by Poseidon's son Aalirrhothios. Ares slew the rapist and was tried by the gods for murder upon the Arepagos. The trial was held on the Hill of Ares overlooking Athens. The trial raises the following questions? Why was the trial held at night? What role did rhetoric play in the trial? What is the “Areopagus”? See also Pausanias, Guide to Greece 1.28.5. Who was Apollodorus and what role did he play in the courts of Athens?_____________________________________________________Lecture # 4: JUSTICE, LAW & MERCY[January 28, 2010]_____________________________________________________Assignments for Class #4:1. William Shakespeare, Merchant of Venice (1597) (Oxford World's Classics: the Oxford Shakespeare) by William Shakespeare and Jay L. Halio (Paperback - May 15, 2008) or see POSNER pp. 65, 87-88, 103-111, 115-121, 123, 126, 143, 150, 189, 243, 282, 321, 397 and LEDWON pp.297-310. Lecture # 3, January 21, 2010. See especially Portia's argument, TheMerchant of Venice, IV, i. What does the play have to say about law and equity? Also read the plot outline, story synopsis and commentaryon Shakespeare’s Measure for Measure by POSNER, see Lecture #5. See especially POSNER’s observations about unpopular minorities trust in a rigid legal system.2. Steiker, Carol S. Lecture on the role of mercy and the administration of criminal justice (one hour, begins 14 minutes into tape, the lecture is less than an hour): Watch a webcast of Professor Steiker's lecture. (RealPlayer Required) @ http://www.law.harvard.edu/news/spotlight/criminal-law/03_steiker.html (using fiction to illustrate truth). The following text is read in the preceding film clip:3. Austin Sarat, Nasser Hussain, Forgiveness, mercy, and clemency, Mercy and the Administration of Criminal Justice by Carol S. Steiker [22 pages, Google Books, http://books.google.com/books?id=KOAoQiRFo70C&pg=PA16&lpg=PA16&dq=Steiker+mercy+justice&source=bl&ots=.. 4. O’Henry. Summarize the two O’Henry stories citedd by Professor Steiker. Can the two stories be reconciled?

It is not necessary to read the following works that will be cited by the lecturer:

Assignments for Class #5:1. POSNER Measure for Measure pp. 114-126 (law and equity, rigidity and flexibility), 143, 150, 244, 398-399 (plagiarism). Define the word desuetude and be prepared to say what you think of it. Shakespeare, Measure for Measure (1604): This play is the best introduction to Shakespeare’s overall view of the law. While The Merchant of Venice has received more legal commentary, Measure for Measure has more legal themes: for example kill all the lawyers… What happens to mercy and the law in this play? What does the play have to say about morality and the law and corrupt judges? How is Angelo like Creon, Captain Vere and Draco? What is the penalty for fornication? Is it better to enforce laws strictly or equitably? Do you think the anti-fornication used to prosecute Claudio would violate his right to privacy in modern American law?2. Bowers v. Hardwick, 478 U.S. 186 (1986) [upholding the Georgia sodomy statute.] Overruled in Lawrence v. Texas, 539 U.S. 558 (2003). Compare the opinion in Bowers to the legal themes in Measure for Measure: Extreme punishment/minor offense; law to enforce morals; is immoral also illegal? What is the importance of respect for the law in enforcement of the law? How does the law work when the source of law is power?3. Victor Hugo, Les Miserables. Google or otherwise research Bishop Myriel and Jean Valjean and summarize the story of the candlesticks. Is this a story of justice, mercy or madness?

It is not necessary to read the following works that will be cited by the lecturer:*4. Kornstein, Daniel J., A Scarecrow of the Law from Kill All the Lawyers: Shakespeare’s Legal Appeal (1994 Princeton University Press). This is a tour de force analysis of the Merchant of Venice and Measure for Measure as they enunciate theories of justice.

1. Shakespeare, Hamlet (Paperback) the grave digging scene: Why not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures, and his tricks?Hamlet, V, i, 99. See POSNER pp. 57, 75-92, 103, 156, 210-211, 222, 241, 243, 247-248, 2852. The New Testament, Matthew 5:38: An eye for an eye… A law of mercy?

It is not necessary to read the following works that will be cited by the lecturer:

*2. Shakespeare, Henry V, IV, I, 132 (the "following orders" defense): Henry V orders the massacre of prisoners at Agincourt.*3. Shakespeare, Timon of Athens. Pity is the virtue of the law. III, v, 8. Is pity the same thing as compassion? As mercy? *4. Shakespeare, Taming of the Shrew I. ii, 277: Do as adversaries do in law, / Strive mightily but eat and drink as friends. Note: Does the ‘adversaries’ reference describe a system of law (the ‘adversarial system’) that is peculiar to England or does it pervade Europe. What other types of legal systems are alternatives to the ‘adversarial’?*5. Shakespeare, The Winter's Tale: as she hath/ Been publicly accused, so shall she have/ A just and open trial. II, iii, 201.*6. Shakespeare, Julius Caesar, III, 2. The funeral oration, a masterpiece of forensic oratory. See POSNER pp. 262-265.*7. See Kill all the lawyers? Shakespeare's legal appeal By Daniel Kornstein (1994 Princeton University Press) Chapter 5 Skull of a Lawyer, Hamlet.

___________________________________________________Lecture #8: REVENGE & THE NATURE OF LAW[February 25, 2010]______________________________________________________Assignments for Class #8:1. Charles Dickens, The Trial of Bardell v. Pickwick [from The Pickwick Papers]; Why didn’t Bardell and Pickwick testify? What do you think of the reason? What does Mr. Perker think of hungry jurors? [Begin your reading at “I wonder what the foreman of the jury, whoever he’ll be, has got for breakfast,” said Mr. Snodgrass…..to “I know’d what ‘ud come o’ this here mode o’ doin’ bis’ness. Oh Sammy, Sammy….” POSNER pp.140-143, 176 (is the jury always a safeguard?). 2. Charles Dickens, In Chancery [from Bleak House]. What does the suit Jarndyce v. Jarndyce mean? LEDWON pp. 251-255 and POSNER 140-144]. (What do you think about justice being rendered according to the conscience of the judge or jury? How does equity fare in this story? Where is the pendulum now?)3. POSNER pp. 49-92, Revenge as Legal Prototype. See also pp. 120, 121 (and try to add to the list). Compare the concept POSNER calls ‘composition’ (page 56) and the phrase ‘restorative justice’ (Google the phrase).

It is not necessary to read the following works that will be cited by the lecturer:

*4. Cicero, On Duties. On Duties, or On Obligations, has generally been the most popular of Cicero’s writings, and perhaps exercised more influence on thought and standards of the western world than any other secular work ever written. Michael Grant, Penguin Classics (1971): Book I. VII, 20 [role of justice and kindness], 21 [private property], 22 [duties to the state], 23 [foundation of justice], 24 [reason for crime], 26, 27 [injury and injustice], 28 [passive injustice], 29 [self-interest], 31 [the two principles of justice], 33 [chicanery], XI. 33 [limits to retribution and punishment], XIV. 42 [kindness and generosity], XVI. 50 [kindness], 51, 52 [public property], 63 [the soul of justice], 71 [duty to engage in public affairs], 87 [electioneering and scrambling for office], Book 2, 49, 50 [winning admiration through lawyering], 51 [capital charges against the innocent and defending the guilty], 66, 67[eloquence at the bar], 70, 71 [ representing the poor], 74 [property taxes], 78-80 [agrarian laws], 83 [impartiality], 84 [debt and public safety], 85 [courts of equity], Book 3, 54-57, 65-67 [a seller’s duty to disclose], 60-61 [criminal fraud], 69 [civil law versus moral law], 70 [good faith in contracts], 97 [doing evil to do good].*5. Cicero, The Laws, Book One, 16-35. Where does justice come from? Is law synonymous with wisdom? *6. Cicero, The Laws, Book Two, 37-40. What does music have to do with law? Why did Athens cut off strings from the instrument played by Timotheus? What would Plato think? See Plato, Laws 3. 700-1; Aristotle, Pol. 8. 5-7, Horace, Ars Poetica 202-19. *7. Michel de Montaigne, Of Custom (1572-1574) (the last 14 paragraphs of the essay). What is Montaigne’s theory about the source of law? Would Montaigne support the idea ‘health care reform’ and innovation? Why does Montaigne think the legal reformer should wear a rope around the neck? What does Montaigne think about legal tricks and artifice?*8 The Hebrew Bible, Exodus (21-23ff); Leviticus (24:17-20); Deuteronomy (19:21). Compare with Dante’s concept of contrapasso or counter-punishment. *9. Rabelais, On Judge Bridlegoose and Lord John the Loony [from Gargantua and Pantagruel]. HOW PANTAGRUEL PERSUADED PANURGE TO SEEK COUNSEL OF A FOOL through PANTAGRUEL’S STRANGE TALE OF THE PERPLEXITIES OF HUMAN JUDGEMENT. Judge Bridlegoose decides cases by rolling dice.*10. Kafka, The Problem of Our Laws:Our laws are not generally known; they are kept secret by the small group of nobles who rule us … for the laws were made to the advantage of the nobles from the very beginning, they themselves stand above the laws*11. Piers Plowman (14th c.): Neede hath no law. Publilius Syrus, Necessity gives the law, but does not herself accept it. What do the two maxims mean? Who is Ananke (or Anance) and what role does she play in the law.____________________________________________________Lecture #9: CRIME, PUNISHMENT AND LEGAL FORMALISMMarch 2, 2010]_____________________________________________________Assignments for Class # 9:1. Sophocles, Antigone (in THE OEDIPUS CYCLE) (441 B.C.E.) (Cambridge Translations from Greek Drama) (Paperback), David Franklin (Translator), John Harrison, Translator, P.E. Easterling (Introduction) or see POSNER pp. 63, 97, 98-100, 172. Lecture #9, March 4, 2010. How is Creon like Captain Vere?2. Dante: contrapasso [Google the word with Dante’s name).4. Walker v. Georgia 555 U. S. 1 (2008) (proportionality review).5. 1 Kings 3:16-28: The Judgment of Solomon.It is not necessary to read the following works that will be cited by the lecturer:*6. Kristen M. Nugent. Proportionality and Prosecutorial Discretion: Challenges to the Constitutionality of Georgia’s Death Penalty Laws and Procedures amidst the Deficiencies of the State’s Mandatory Appellate Review Structure University of Miami Law Review (2009). At: http://works.bepress.com/kristen_nugent/1 (look for ‘download the paper’ option in upper right hand corner).*7. Plutarch, Lives: Solon [legendary Athenian lawgiver, died 539 B.C.E] written 75 C.E. translated by John Dryden http://classics.mit.edu/Plutarch/solon.html [this essay describes the architecture of a complete system of justice in Athens and compares it with the system of justice in Sparta]: First, then, he repealed all Draco's laws, except those concerning homicide, because they were too severe, and the punishment too great; for death was appointed for almost all offences, insomuch that those that were convicted of idleness were to die, and those that stole a cabbage or an apple to suffer even as villains that committed sacrilege or murder. So that Demades, in after time, was thought to have said very happily, that Draco's laws were written not with ink but blood; and he himself, being once asked why be made death the punishment of most offences, replied, ‘Small ones deserve that, and I have no higher for the greater crimes.*8. Plutarch Lives: Lycurgus [legendary Spartan lawgiver, 800-730 B.C.E.]. Compare Solon with Lycurgus with Draco. What did Lycurgus think of music and the law? What did the Delphic Oracle think of Lycurgus’s laws? http://classics.mit.edu/Plutarch/lycurgus.html [this essay describes the complete system of justice in Sparta].

Friedrich Schiller (1789): Solon and Lycurgus were great and righteous men, but their laws differed greatly since they proceeded from principles diametrically opposed. The character of an entire people is the most faithful impression of its laws, and the surest judge of its value. Limited was the mind of the Spartan, and insensitive his heart. He was proud and haughty toward his fellows, severe toward the vanquished, inhuman toward his slaves, and slavish toward his superiors; in his transactions, he was unscrupulous and faithless, despotic in his decisions, and his greatness, even his virtue, lacked the pleasing grace, which alone wins hearts. The Athenian, quite the contrary, was gentle and tender of behavior, politely intelligent in discussion, kind to inferiors, hospitable and helpful to foreigners.*9. 1 Kings 3:9-12; and 10: 24: Solomon’s Wish: Give Thy servant an understanding heart to judge…______________________________________________________Lecture #10: CRIME, PUNISHMENT& LEGAL FORMALISM[March, 25, 2010]_____________________________________________________Assignments for Class #10:1. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924 posthumously). Has any work of American literature generated more antithetical and mutually hostile interpretation than Herman Melville's Billy Budd, Sailor? And all the battles about the moral and political vision at the heart of the tale swirl around one question: Are we supposed to admire or condemn Captain Vere for his decision to sentence Billy Budd to death by public hanging? Somehow, astonishingly enough, nobody seems to have noticed that central to the story is the subject of capital punishment and its history. H. Bruce Franklin Reprinted from AMERICAN LITERATURE, Copyright 1997 by H. Bruce Franklin): See POSNER pp. 122,148-50, 162, 163, 165-173, 179, 181, 242. Compare Captain Vere, Creon, Lycurgus, Draco and Solon and Solomon.

1. Lon L. Fuller, Speluncean Explorers: In the Supreme Court of Newgarth, 4300 http://www.nullapoena.de/stud/explorers.html (Harvard Law Review, 1949). Would Judge Bridlegoose approve of the method used to decide? Consult notes from Lecture #8. Be prepared to discuss the five divergent legal theories.

2. Clarence Darrow, Address to the Prisoners in the Cook County Jail, LEDWON 283

1. Albert Camus, The Stranger (1942) [A Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial, the arbitrariness of justice). POSNER pp. 40-48. Is the novella a polemic against capital punishment? Is it imaginative literature? What does this story say about capital punishment? What does Billy Budd (the man) have in common with Mersault? What does this work have in common with Dickens’ Bleak House? Jarndyce v. Jarndyce drones on. This scarecrow of a suit has, in course of time, be- come so complicated, that no man alive knows what it means. The parties to it under- stand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Charles Dickens, Bleak House 7-8 (George Ford & Sylvère Monod eds., W.W. Norton & Co. 1985) (1853)._______________________________________________

Lecture #13: Crime & Punishment[April 15, 2010]

________________________________________________Assignments for Class # 13:1. Jack L. Sammons, On Teaching the Legality of Televising Capital Punishment, LEDWON 2932. Robert Browning, Porphyria’s Lover, LEDWON 2943. Gilbert & Sullivan, The Mikado (1885). Scan or research the opera text to determine why Ko-Ko, the Lord High Executioner was appointed to his position; what he or the Pooh-Bah thinks of his position; the Pooh Bah’s explanation as to why the executioner enjoys such high status in the town of Titipu.4. Homer, The Odyssey,Book XXIIhttp://classics.mit.edu/Homer/odyssey.22.xxii.html . Read only the last eight paragraphs of Book XXII that describe how and why Telemachus executed Penelope’s twelve handmaidens. Could these executions take place today in the United States?5. Greek Mythology, Theseus. Using classical dictionaries, reference books and your own research ingenuity, determine how Theseus cleared the road from Troize, over Corinth and Isthmus to Eleusis and Athens from bandits and other criminals such as Sinis, Procrustes (Damastes), Periphetes and Sciron. http://www.in2greece.com/english/historymyth/mythology/names/theseus.htm . Would Dante approve of Theseus methods of punishing crime? Also see Minos, the Odyssey Book XI 568. Where does Judge Minos do his judging? What kind of lawmaker was he?

1. The ApocryphaSusanna and the Elders. Is there any trial technique utilized in the story that modern American justice continues to use? What type of offense justifies the death penalty in the story? If the Elders had intended to wreck Susanna’s marriage and her social standing, would they have received the death penalty? Daniel 13 in the New American Bible or here: http://bible.oremus.org/?version=nrsvae&vnum=yes&passage=Susanna2. Carolyn Heilburn and Judith Resnik, Convergences: Law, Literature and Feminism. LEDWON pp. 91-126. Be prepared to discuss Jude the Obscure, A Doll’s House,Hoyt v. Florida, Michael M. v. Superior Court.

3. W. H. Auden, Law Like Love [LEDWON 221].

4. Susan Glaspell, A Jury of Her Peers (1917). What do you think of Mrs. Hale and Mrs. Peters story about the canary and their repair of the quilt? What is the difference in the jury make-up in the story and the jury that heard the actual case the story is based on? Why do Mrs. Hale and Mrs. Peters help Minnie? POSNER pp.122-126. (Are the women in the story like Portia?).

Donald Vish, Middleton Reutlinger, of counsel; executive director and board member, The Joan & Lee Thomas Foundation; director of advocacy, The Kentucky Coalition to Abolish the Death Penalty; board member, Louisville Bar Association (Committee on Judicial Integrity and Independence); elected life member, The American Law Institute. Member of the Kentucky and Florida bars.